2014 Official Opinions

Official opinions will be posted as they are issued, generally within 24 to 48 hours. Please check this page at regular intervals to determine whether additional opinions have been issued.

IMPORTANT NOTE: Official opinions represent the attorney general’s analysis of current law based on his thorough research of existing statutes, the Virginia and United States constitutions, and relevant court decisions. They are not "rulings" and do not create new law, nor do they change existing law. Creating and amending laws are the responsibility of the General Assembly, not the attorney general.

Official opinions are legal advice, not personal opinions, and do not reflect the attorney general’s personal views about what the law should be. Such advice is provided to ensure clients/the requester are in compliance with the law. While the opinions may be given deference by the courts, they are not binding on the courts.

The official opinions issued by the attorney general are part of the duties of the office (see Code § 2.2-505). A person authorized by statute, such as the governor, a member of the General Assembly, a constitutional officer, or the head of a state agency, can ask the attorney general for an official opinion on the law. Members of the general public are not authorized to ask for opinions.

Guidance regarding the proper procedural steps a law enforcement officer must follow to obtain a blood sample pursuant to the implied consent law where the suspect has been transported to a medical facility for treatment.

The decision in Bostic v. Rainey requires clerks of court to interpret the term “husband and wife” as used in § 58.1-810.3 to include spouses of the same sex. Accordingly, a deed to which the only parties are married individuals, regardless of whether such individuals are of the same or opposite sex, is exempt from the Virginia Recordation Tax pursuant to § 58.1-810.3.

An institution of higher education within a city may not allow its employees to operate utility vehicles on public highways within the institution’s property limits unless the city has designated and posted the highways for such use following an appropriate review.

Under the facts presented, an absolute prohibition on political booths at a county fair is not constitutionally permissible and charging a higher fee for such booths than others is presumptively unconstitutional unless justified by a compelling governmental interest, and unless it is narrowly drawn to meet that interest.

Virginia’s laws voiding bigamous marriages and criminalizing bigamy are constitutional; the Fourth Circuit’s decision in Bostic v. Schaefer does not invalidate §§ 18.2-362, 18.2-363, 20-38.1, 20-40, and 20-45.1 of the Code of Virginia, which prohibit bigamy by all persons, regardless of sexual orientation or gender identity. Also, bisexual and transgender Virginians, like all Virginians, have the right to marry the person they choose, so long as the marriage is otherwise lawful.

November

Section 15.2-2306 allows a locality to require - as a condition of developing property in an area of known historical or architectural significance - documentation, reasonable under the circumstances, that the development will preserve or accommodate historical or archaeological resources. Whether an archaeological survey is necessary to meet the reasonable documentation requirement is a question of fact about which this Office can express no opinion.

Honorable Brenda S. Hamilton, Clerk of Court, Circuit Court of the City of Roanoke

Under § 64.2-1302, only the claims of a creditor seeking qualification for the filing waiver must exceed the value of the estate in order for the exemptions provided to apply; what constitutes sufficient proof of a claim exceeding the value of the estate is a matter within the discretion of the clerk.

The City of Virginia Beach does not have zoning authority to prohibit or otherwise to regulate advertising signs on bicycles or bicycle trailers using public streets. No opinion is expressed regarding whether Virginia Beach may impose such regulations under its police powers.

A juvenile and domestic relations court may enforce, through indirect contempt proceedings, a provision of an emergency protective order granting the petitioner the possession of a companion animal when a magistrate has issued the EPO. Such proceedings may be initiated by a JDR court through the issuance of a show cause summons. Finally, a JDR court has discretion in imposing punishment for a violation of a companion animal provision in an EPO, but the punishment may not exceed a jail sentence in excess of six months or a fine in excess of $500 without affording the defendant the right to trial by jury.

When the powers of a vacant constitutional office are assumed by the highest ranking deputy within the office as provided by § 24.2-228.1(B), the deputy need not be a resident of the locality of service.

A local governing body may require dedication of land for street widening and construction of drainage improvements only when the need for such conditions is generated by the proposed development. Whether that standard has been met in any particular situation is a question of fact that this Office does not determine.

October

The term “unmanned aircraft system,” in conformity with its accepted industry definition, encompasses a single unmanned aerial vehicle that has corresponding equipment and controls permitting its remote use by a human operator. Therefore, Chapter 755, which is effective until July 1, 2015, temporarily prohibits law enforcement from using a remotely controlled quad copter to gather evidence pursuant to a warrant; however, Chapter 755 does not prohibit the use of unmanned aircraft systems for specified humanitarian purposes.

Honorable Ross A. Mugler, Commissioner of the Revenue, City of Hampton

In order to qualify for the tax exemption afforded meals sold as part of a fundraising activity, the meals must be sold by the qualifying entity to raise money exclusively for nonprofit educational, charitable, benevolent, or religious purposes. Virginia law does not make competition with private, for-profit businesses a factor to be used in determining tax status, nor does it differentiate between activities that are open only to members and activities that are open to the public. Also, Virginia law does not limit the frequency of such activities, but it does impose a statutory cap related to frequency. Finally, the IRS definition of “fundraising activity” is not applicable. Whether a particular activity satisfies the requirements for exemption is a factual determination to be made by the commissioner of the revenue or other appropriate tax official.

Section 24.2-112 authorizes a general registrar, in his discretion, to hire additional temporary, part-time employees when needed and requires the local governing body to compensate such employees as provided for by law.

While Tannerite is an explosive material within the meaning of § 18.2-85 of the Code of Virginia, its use or possession is not illegal so long as the use or possession is for a lawful purpose, such as the recreational use for which it is intended. Whether any particular use or possession of Tannerite is for an illegal purpose is a question of fact beyond the scope of an opinion.

Regulations adopted by the State Board of Elections for the purpose of administering Chapters 9.3, 9.4, and 9.5 of Title 24.2 of the Code of Virginia concerning campaign finance laws do not relate to “the conduct of elections or eligibility to vote,” and therefore do not qualify for an exemption from the Administrative Process Act's regulatory process.

September

Although no law requires the acceptance of mailed voter registration applications with electronic signatures, the State Board of Elections is not precluded from directing that general registrars accept such applications, and the State Board, in its discretion, may do so. The State Board also has discretionary authority to establish criteria to preserve the security of confidential voter information and to ensure the authenticity and validity of electronic signatures.

A Virginia Department of Health licensing inspector who is a nurse and who, during the course of a hospital inspection, learns from the review of a medical record that a fourteen-year-old girl received services related to her pregnancy is not required to make a report of child abuse and neglect pursuant to Virginia Code § 63.2-1509 unless there is reason to suspect that a parent or other person responsible for the child’s care committed, or allowed to be committed, the unlawful sexual act upon the child. The inspector also is not required to make a report to law enforcement of the crime of carnal knowledge of a child between the ages of thirteen and fifteen.

August

Virginia law limits the manner in which a Property Owners' Association may regulate traffic on its private streets. A vehicle driver may be compelled to stop only if enforcement of the traffic laws is done by a local law enforcement agency or by a private security service that is properly licensed by the Department of Criminal Justice Services, and whose employees have also been appointed as conservators of the peace. Otherwise, a POA may not compel a vehicle driver to stop. As to how traffic laws can be enforced on privately owned streets, a POA may request the local law enforcement agency to do so, or the local governing body may designate the private streets as “highways” for law enforcement purposes. Also, the use of blue or green lights on a private patrol vehicle is strictly prohibited, and that amber lights may be used only if the patrol is operated by a licensed private security business or an approved neighborhood watch group.

Robert W. Duncan, Executive Director, Department of Game and Inland Fisheries

The word “landowner” in paragraph (A)(1)(iii) of Chapter 482 of the 2014 Virginia Acts of Assembly is not limited to landowners who are natural persons. The exception to the general prohibition on Sunday hunting created by paragraph (A)(1)(iii) is limited to private lands.

July

The former Superintendent legally may not participate in the Supplemental Retirement Program under the facts presented. Further, the Board of Supervisors, in its sound discretion, may modify, discontinue, or elect not to make annual appropriations to the program.

The provision in Article III, § 1(4) of the Town Charter, which allows the Town Council to expel a member by a two-thirds vote, is a constitutional exercise of legislative power. Sections 24.2-230 through 24.2-238, which relate to the removal of local elected officers, do not supersede this provision of the Charter. Further, the mayor may not vote in expulsion proceedings, and the concurrence of two-thirds of all council members eligible to vote is required in order to remove a council member.

Section 2-5 of the Petersburg City Charter, and the Disciplinary Procedure adopted by the City Council pursuant thereto, are valid exercises of constitutional authority. The constitutionality of the City Charter and the Disciplinary Procedure are not affected by § 24.2-233 of the Code of Virginia

Section 15.2-1705 disqualifies a prospective law enforcement officer from service if that individual has been convicted of, or has pled guilty or no contest to, one of the offenses specified in the statute, even if the charge is later dismissed or expunged. Nevertheless, upon request of a state or local law enforcement agency, the Department of Criminal Justice Services may waive this disqualification for good cause shown. Further, although an individual who was adjudicated delinquent as a juvenile for an enumerated offense is not automatically disqualified from service as a law enforcement officer pursuant to the statute, state and local law enforcement agencies are authorized to consider certain aspects of juvenile adjudications as a basis for denying employment.

Honorable Robert L. Bushnell, Judge, Juvenile and Domestic Relations Court for the City of Martinsville and the Counties of Henry and Patrick

A prisoner charged as a juvenile but sentenced under § 16.1-284 is eligible for the good conduct credit established in § 53.1-116, if the offense for which he is being sentenced would be classified as a misdemeanor if committed by an adult. However, if the offense for which he is being sentenced would be classified as a felony if committed by an adult, the good conduct credit established in § 53.1-116 does not apply. Further, in the event the prisoner has received a sentence arising from multiple offenses, one or more of which would be a misdemeanor if committed by an adult, and one or more of which would be a felony if committed by an adult, the good conduct credit applies to the misdemeanor sentence(s), but not to the felony sentence(s). As to good conduct credit for violating a court order or the terms of probation or parole, the underlying offense governs in the same way.

Section 33.1-42, by its express terms, allows the Town of New Market, with the consent of the Commissioner of Highways, to maintain those roads in the Town that are incorporated in the State Highway System, but not those that are part of the secondary system of state highways. The statute further allows the Town to be reimbursed up to the amount the Commissioner is authorized to expend for such street maintenance.

June

An appointment to fill the vacancy of an unexpired electoral board term must reflect political party representation based on the votes for the office of Governor at the last preceding election at the time the appointment for the vacancy is made. Accordingly, the party of the candidate who prevailed in the most recent gubernatorial election is entitled to recommend the electoral board appointment to fill the vacancy.

Although § 22.1-30 applies to school board appointments made by a school board selection commission, it prohibits only an appointment that is made while the relative is serving on the board of supervisors; therefore, § 22.1-30 does not preclude a school board member who was appointed prior to the election of the member’s spouse to the county’s board of supervisors from continuing to serve on the school board after his election.

Honorable T. Scott Harris, Commissioner of the Revenue, Hanover County

The terms “original cost” as used in § 58.1-3503(A)(17) and “original total capitalized cost” as used in § 58.1-3507(B) mean the original cost paid by the original purchaser of the property from the manufacturer and not the price paid by the current owner.

May

The Governor must enforce valid, duly enacted laws unless the power to delay or suspend enforcement is granted by statute or by the law’s enactment clause. Based on longstanding precedent, a question related to the scope of power that can be exercised by the President of the United States with regard to enforcing a particular federal law is not an appropriate subject for an official Opinion.

While a Clerk is governed by the federal and state constitutions, he has no authority to deem unconstitutional a statute imposing on him a ministerial duty. Such determinations are made only by the judicial branch, and thereafter interpreted by the judicial branch and other officials charged with doing so. The duties of a Clerk are ministerial, and decisions relating to constitutionality are discretionary, not ministerial. Whether particular conduct of a Clerk declining to apply a statute constitutes malfeasance is a fact-specific determination beyond the scope of an official Opinion. Conversely, as a general principle, a Clerk who in good faith performs his ministerial duties in the absence of clear judicial authority directing him not to do so has not engaged in malfeasance.

A member of a Board of Supervisors does not vacate his elected office solely due to an absence from his electoral district to engage in temporary employment, provided that he maintains his domicile and place of abode within the district and intends to return there upon the termination of the temporary employment.

A service district may not legally be created to encompass an entire locality where the funds to be raised thereby would replace an existing source of general fund revenues for a regional jail, and where the special service district is not being created in order to provide additional, more complete, or more timely services.

March

Because a county board of supervisors constitutes neither a “department” nor an “agency” within the scope of the relevant statutory provisions, its members are not subject to the provisions of §§ 15.2-1239 and 15.2-1240

HonorableMichele B. McQuigg, Clerk of Circuit Court, Prince William County

So long as the grantor is an organization that meets the criteria set forth in § 58.1-811(A)(14), a deed or contract offered for recording is exempt from the taxes enumerated in §§ 58.1-801 and 58.1-807, and neither the grantee nor the grantor is required to pay those taxes.

January

Several questions regarding the recently amended Article I, § 11, of the Constitution of Virginia, the related legislation contained in §§ 25.1-100 and 25.1-230.1 of the Code of Virginia, and a previous opinion of this Office that concern the power of eminent domain as it relates to just compensation owing for lost access.

It is not a violation of the State and Local Government Conflict of Interests Act for members of the Commission to vote on transactions before the Commission where such transaction involves an entity or organization represented by a consulting or law firm where a member’s sibling is a partner, unless such sibling resides in the same household with the member or the member is dependent on the sibling or the sibling is dependent on the member.

A Governor may not direct or require any agency of state government to allow same-sex couples to receive joint marital status for Virginia income tax returns. Such a directive would represent an attempt to exercise legislative powers in violation of the constitutionally mandated separation of powers and would also violate the express terms of Article I, § 15-A of the Virginia Constitution.

Subject to the outcome of litigation that may, or may not, change the status of current law, the Technical Release issued by the U.S. Department of Labor respecting employee benefits plans in the wake of United States v. Windsorshould not be considered as legally binding to the extent that it conflicts with Section 2 of the federal Defense of Marriage Act and Article I, § 15-A of theConstitution of Virginia.

An electronic case management system that provides the contents of an order book as prescribed in § 17.1-124, that is created using an electronic recording process compliant with the archival standards as recommended by the Library of Virginia, and that follows state electronic records guidelines as provided in § 42.1-82, fulfills the requirement of an order book as described in § 17.1-124.

While the Governor has a significant role to play in the formulation of regulations promulgated by executive branch agencies, the Virginia Constitution prohibits the Governor from unilaterally suspending the operation of regulations that have the force of law.